Posted
by
samzenpus
on Thursday April 19, 2012 @09:10PM
from the won't-somebody-please-think-of-the-studios? dept.

trawg writes "The Australian High Court has just dismissed an appeal by Australian and American media companies against ISP iiNet, in what will hopefully be the final step in an ongoing copyright lawsuit drama. The Court noted that 'iiNet had no direct technical power to prevent its customers from using the BitTorrent system to infringe copyright.' Ultimately, the court has held that iiNet's inactivity to act on infringement notices didn't imply any sort of authorization of that infringement by their customers. Good news for Australians as a clear line has been drawn that will help ensure ISPs don't have to bear the cost of policing their customers."

C'mon, surely this can't be true? Stuff like this *never* happens. This demonstrates a clear failure of the studio's lawyering and lobbying. They need to find more lawyers immediately and seriously up their game. If this sort of common sense is allowed to take hold, who knows what may happen.

I'm amazed so few have stood up to their ass-rat behaviour. The studios have been bribing politicians so much they seem to think they actually run the country in many places. It may be that many people at this point *do* think they are entitled to dictate what ISPs do.

Actually, as an Aussie who's been twice on his "deathbed" (admittedly only once from our huge array of deadly beasts, especially the drop-bears), I *still* have a fear of lawyers. I'm brave, not stupid:-)

For those who are not aware, AFACT stands for 'Australian Federation Against Copyright Theft' yet most of the companies behind AFACT are American. It would be better named American Federation Against Copyright Theft.

I am not a lawyer, but I am surprised that no one has challenged the name of this business.. for example with the intent to force them to change it from 'Australian' to 'American' as right now they could well be deemed to be passing off in a deliberate attempt to deceive the public - which would be classified as a type of fraud.

A view from a lawyer or legal professional on this would be useful if anyone out there cares to comment..

I think that they mean copyright infringement [wikipedia.org] however copyright theft is much more sensational.. and probably very useful as a term to throw around in court and in the media.

I have no idea how copyright THEFT would occur as such.. perhaps if you served legal documentation claiming to own something which belongs to someone else and collected the royalties for it? Would that constitute 'the stealing of someone's copyright'...

Or perhaps if you walked into their house and stole the documents which grant a speci

So, if we use this as an analogy.. who is the snake and who is the spider?I think I'll go that.. the RIAA/MPAA/AFACT think that their customers are snakes.. and they are the spider (they want to control the web).. and in this case the spider gets one over the snake.

For those who are not aware, AFACT stands for 'Australian Federation Against Copyright Theft' yet most of the companies behind AFACT are American. It would be better named American Federation Against Copyright Theft.

I am not a lawyer, but I am surprised that no one has challenged the name of this business.. for example with the intent to force them to change it from 'Australian' to 'American' as right now they could well be deemed to be passing off in a deliberate attempt to deceive the public - which would

I am surprised that no one has challenged the name of this business.. for example with the intent to force them to change it from 'Australian' to 'American' as right now they could well be deemed to be passing off in a deliberate attempt to deceive the public - which would be classified as a type of fraud.

I always thought, when Murdoch dropped his Australian citizenship to become an American, he should have been required to change the name of his newspaper from "The Australian" to "The American". But then, his corporation calls itself "News Corp" when it should be called "Bias Corp", or something like that... if we required "Truth In Naming".

So, yes, I would support your claim that AFACT would be less deceptive if it called itself the "American" FACT

If AFACT keep going on this way.. how long until someone does point it out.. in court..

I'm not sure how Abbott getting elected next year, because yes it is going to be a landslide *against* Gillard, will result in a Privatewealth. Care to enlighten? Along with how this change in politics could affect the copyright battle currently going on?

High Court judges are more like the high priests of Australian judiciary. Their professionalism and ego are very much bound to that appointment. Strict accurate literal interpretation of the law is what they believe in and what they adhere to. This often trips up many politicians and of course corporations. None of this sounds like, looks like, could possibly be, politically aligned decisions. Even when politicians have made their way there, upon appointment they have demonstrated strict professionalism.

Unhappy with their ruling. Rewrite the law so that it fits in with constitution or if that is not possible, attempt to force a referendum to get the constitution changed, so that the law you wants fits in with that. Yeah good luck with that.

More simple access to referendums (where the whole electorate) votes on a single issue, make stacking the high court kind of mute, they could say no, it gets put in a referendum and the majority of the public say yes, then it's yes. especially on key issues.

Bribing is such a dirty word. It sounds low, base and frankly illegal. We can't have that. Instead, you lobby the lawmakers until you have legislation that leaves the judiciary with no option but to find in the studio's favour. The alternative is unconscionable - e.g. Disney DVDs & BDs drop in price, consumers have increased choice, customer service improves and margins fall. Think of the children for Dawkin's sake!

They only let it get as free as it is because the internet snuck up on them. No-one in government really planned the civilian growth of the internet... it just happened. If the governments of any world were allowed a do-over, you can be sure they'd make it more centralised, controlled and policeable. For the children, naturally.

If I had mod points, I'd mod you to the moon. The Internet is as awesome as it is because we got lucky. By the time the governments and corporations realized what they had on their hands, it was too late to redo the whole thing.

The internet grew because it was open. Several more manageable alternatives were competing with it, none of them got anywhere. If this actual implementation wasn't open, it would also go nowhere, and some other open one would replace it.

Now, of course, the existence of any global network at all depended on the governments everywhere agreeing to it. And they just agreed because the Internet did already lurk into their country running over the telephon

Well the aussie gumberment did sign ACTA, what's most surprising is, there have been large protests in europe over ACTA, yet, it breezed through here in skipville pretty much without a mention in the media (mind you, it was agreed to before the protests in europe)

Well the reason for that is that the average aussie doesn't know or care about politics, but mandatory voting exists here. So, every election they get out their crayons to draw penises on the ballot, or flip a coin to decide who to vote for.

There are perhaps 1-2% who care enough to decide properly, hence most aussie elections go down to the wire 49-50 between labor and liberal.

Well the reason for that is that the average aussie doesn't know or care about politics, but mandatory voting exists here. So, every election they get out their crayons to draw penises on the ballot, or flip a coin to decide who to vote for.

Informality rates are around 5% [aec.gov.au], that includes both ballots spoilt by accident and those deliberately spoil. Average?!

There are perhaps 1-2% who care enough to decide properly...

That figure should be 75-80%. See, I can pull bogus figures out of my arse too!

The trouble is, when the courts smack down the media companies, the government steps in with new legislation, since they are in the back pocket of the media companies. Stephen Conroy, Labor's communication minister has already signalled that when iiNet loses, he's going to do just that.

Your Forgetting that the standing government is going to lose the next election, hell they might not even get to the end of their term. When a government is in this position they'll pass a lot of legislation that will be bad, look at previous governments in this country that knew they where going to lose - like nsw labour selling off the power companies etc...

Just be fair about it. Artists should be paid for their work, even if they use the *IAA's like loan sharks. Tell your legislator of choice to focus legislation on allowing the artists to ask distributors that they don't have a deal with for a *reasonable* payment per download (ie: about what an artist actually gets in their pocket per iTunes download), and also limit it to only those distribution sites that are making money (advertising, donations, subscriptions, etc.). Then let them go after the distributo

Implying the liberals aren't just as bad as labor for giving the copyright industry a massive fellatio whenever they want. Howards government started the acta talks, and the current labor signed it. This is not a switch government to fix issue situation.

There is a reasonable technical way to police bit torrent. (watch torrent, determine torrents contents is your intellectual property, get list of IP addresses from the swarm, match those to users via ISP) But now the studios have to subpoena the ISPs with enough details to satisfy the ISPs legal departments then sue or prosecute the end users. The studio wanted the system where they got to shortcut the legal system at the expense of the ISP to punish the end user.

I'm gladdened that the courts saw the logical fallacy of allowing one corporation legal rights to force another corporation to lose profits through direct cost or degradation of service based on a failure to adapt to market changes.

While i agree there is value being lost through piracy it just seems the courts were the easier path to take instead of adaptation and new delivery methods. That might require some planning and work after all.
I'm in 100% agreement with Gabe Newell from Valve that piracy is largely a service problem.

But since these fellows at the RIAA and the MPAA seem hell bent on using the copyright laws like a club to beat the ISPs and potential customers over the head with in order to get their way, will anything change?

But despite piracy being a service problem, i still get quite frustrated with the DRM of steam (especially with australian internet connections), the only company to do it right is GOG, gaben shouldn't get much credit for it at all, he just talked the talk without walking the walk.

No, things aren't going to change, unless and until people stop patronizing the rat bastards who fund MPAA/RIAA and their ilk.

If we, the human population of the world, just stopped buying their shit tomorrow, within the year, MPAA/RIAA would be pretty much irrelevant. Let them spend their remaining billions buying politicians. If we just stop doing business with them, there will be no more billions with which to buy newly elected politicians. It's simple, really.

Yeah, which is the funny part considering that the ABC is government funded.

I knot that we are the "upside down" place and all stand on our heads, but this aspect always makes me laugh. The only fully government funded station (SBS is only partially funded by the government) and it is the only one that really calls bullshit when needed.

Here's the Judgement Summary: http://www.hcourt.gov.au/assets/publications/judgment-summaries/2012/hcasum16_2012_04_20_iiNet.pdfHere's the full Judgement: http://www.austlii.edu.au/au/cases/cth/HCA/2012/16.html

In the full judgement, the Justices systematically (and unanimously!) take apart the assertion that iiNet had "authorised" infringement just because they refused to kowtow to demands that they police their users for the copyright lobby. They point out that it's not appropriate (or legal) for an ISP to monitor or police their users' private traffic at the demand of another private entity.

Further, they held that the notices of infringement (aka shakedown letters that most ISPs meekly pass along) "did not provide iiNet with a reasonable basis for sending warning notices to individual customers containing threats to suspend or terminate those customers' accounts".

And at the very end, after the Justices explicitly provide some useful closing of loopholes by carefully passing over the legislation and common law cited by the copyright lobby... they order said lobby to pay all iiNet's costs.

They might have been smaller at the time, but there really aren't a "small" ISP. You also know that they recently knocked Optus off its perch to get the number 2 position right? The difference is that both Telstra and Optus are much much bigger companies (they both deal with landlines seriously and are mobile phone providers) while iiNet only deals with internet.

All that isn't to say that I disagree with the sentiment in your post - the fact that they calculated a player major enough to be seen as important

The two main courses now of action seem to be: the media companies start offering media in a reasonable format in a reasonable timeframe at a reasonable price, or they lobby government and pursue backroom deals. The first is supported by many and has been proven to work fairly well with PC games by Valve with Steam, and iiNet has said it would be happy to help with this. The second however is much more in character, despite having been proven fairly well to not work.

Not that we aren't already shafted by American media conglomerates, but who wants to place bets on this decision reducing even further the desire for said media companies to deploy legal online streaming options in this country?
I agree 100% with this decision, don't get me wrong there - I just think that as a result, these American media conglomerates are going to be even more timid about distributing their products in.AU

If the phone companies see that people want to do this and deliberately adjust their business plan to accomodate, for example by increasing the frequency bandwidth to match music quality and providing phones into which you can plug your iPod, then yes, they will fall under some law regarding profiting or aiding.

It comes down to proportion, which is why MegaUpload have legal problems and Google don't. However to my mind internet access is so crucial to modern life that it's impossible to separate the legal/

Yes, iiNet won and the studios lost. Now here's the reaction from the studos' media representative (http://www.abc.net.au/news/2012-04-20/iinet-wins-download-case/3962442):

----AFACT [*] managing director Neil Gane said the group would lobby for changes to copyright laws following the decision.

"Now that we have taken this issue to the highest court in the land, it is time for government to act," Mr Gane said.

"The Government has always maintained that content is the key driver of digital economic growth. I'm sure the Government would not want copyright infringement to continue unabated across Australian networks, especially with the National Broadband Network soon to be rolled out."----

[*] AFACT is the Australian equivalent of the RIAA/MPAA, or rather, as some Wikileaks memos have shown, they are the Australian arm of the RIAA/MPAA, the control directly coming from the States.

So, the copyright industry's attitude is that "if what we demand is unlawful, we will lobby/bribe/force the government to change the law to our favour". Knowing the Australian parliament, probably they will succeed in a reasonably short time.

I'm an Australian author (plug: http://www.amazon.com/dp/B006RZNR3Y/ [amazon.com] ) who relies exclusively on digital sales and I strongly oppose any such fucking with our legal system.

Go away, AFACT. Nobody wants you to exist. Not the politicians. Not the voters. Not the readers (listeners/viewers/etc). Not the content creators.

Nobody.

AFACT serve only the Hollywood industry who is so inept and out of touch with what's going on around them that they senselessly blunder into things like this. They are dicks and their defeat in court -- an utterly humiliating and complete defeat where they had to pay all of iiNet's costs -- makes me cackle with glee.

"YouTube could face a huge bill for royalties after it lost a court battle in Germany over music videos [bbc.co.uk].
A court in Hamburg ruled that YouTube is responsible for the content that users post to the video sharing site.
It wants the video site to install filters that spot when users try to post music clips whose rights are held by royalty collection group, Gema.
The German industry group said in court that YouTube had not done enough to stop copyrighted clips being posted.
YouTube said it took no responsibility for what users did, but responded when told of copyright violations."

> Good. The copyright cartels are like negligent parents: they think all the rest of society should bear their responsibility for them.

The problem is Congress has been all too willing to make copyright penalties unreasonably harsh. 'Crimes' are by definition offences against the state or against the public. From that position of power copyright cartels have no need to let the free market run and reduce their prices.

You could ask why doesn't Congress take an equally harsh line against Patents? "You w

So everyone tells me, but my experience of iiNet after they borged Netspace was the complete opposite. Network went to crap when I was moved from an Optus DSLAM to a Telstra one, the customer service stuffed up, and the price increased.

I am a long time Internode customer (last three houses and I use Internode for my parents ISP as well) and I can say that at my current residence of two and a bit years, I have always been on a Telstra DSLAM at the exchange, but just this month, Internode upgraded to their own DSLAMs at the exchange, and I got a similar email informing me that my parents account will also be moved to their own infrastructure in the near future - so it seems it anything, the service is being improved with some extra cash tha

I wouldn't have stuck with Netspace for 8 years if they weren't fantastic. It was a terrible shame to see them get so badly stuffed up.

On leaving them, they sent me a survey to fill out to tell them why I'd left, the link for which didn't work, so I emailed the customer service people back, cc'ing Michael Malone, explaining how as a long term customer of Netspace that it was with regret I was leaving after 8 years as a customer, but in 4 paragraphs exactly how they drove me away.

The next morning, I got a phone call from a senior customer service person at iiNet, who apologised for everything that happened and gave me an undertaking that iiNet were going to endeavour to make sure what had happened to me didn't happen with their future acquisitions. Whilst it was too late for me as I'd already churned away, I hope that they stuck to their word.

I believe that someone using an anonymous account is a lawyer as much as I believe in Santa Claus and the Tooth Fairy... sign in so I can verify your existence, and legal background and I'll change my tune;)

My lawyer friend is overseas on holiday... the bastard! However my previous experiences in civil litigation 17 years ago resulted in my legal fees being deducted from the amount hence my statement. However, in my case it didn't get to court, which is probably why this happened... after the settlement

Good. The copyright cartels are like negligent parents: they think all the rest of society should bear their responsibility for them.

Can't be bothered to be involved in your kids' life and pay attention to what they watch and what games they play? No problem! Just censor everything! Can't be bothered to do your own discovery and catch your own filesharers? No problem! Just offload the task to the ISPs without compensating them!

Tired, tired, TIRED of this bullshit. About damned time a court had some sense. Guess the MAFIAA didn't bribe^H donate to the right politicians this time?

Where I currently live (in the US), I have three options for internet:

1) Dial-up.2) Satellite.3) Time Warner.

Since I require use of the internet for more than email, 1) is out.

Since I can't afford $90/month, 2) is out.

But with 3), the ISP is owned by the copyright holders. That is, the same company that owns New Line, Time Magazine, HBO, TBS, The CW, Warner Bros, Cartoon Network, CNN, DC Comics, Castle Rock Entertainment, and others.

There's a whole slew of ideas that were once considered so important they were taken for granted but have fallen out so thoroughly that people today barely even think of them at all.

For instance, thirty years ago there was a consensus that one company shouldn't control huge swaths of the media. It was understood that even the appearance of the conflict of interest was not to be tolerated.

Who knows if it's "put to bed"? Do you really believe the robber barons are going to just say "Oh well, we lost fair and square, let's move on"? They have quite a bit more money than sense, so they're just moving to a different front.

Me, I'm waiting for the inevitable Copyright Wars, in which I plan to fight for the Resistance. Check that: have been fighting for the Resistance.

They didn't, the lost their original case, their appeal was denied and they took it to the High Court of Australia - pretty much the equivalent of SCOTUS in the US. There really isn't anywhere further for them to take this case.

Sure, they might try down a parallel path with a similar objective, but a wonderful side effect of taking it to the High Court is that now pretty much any similar path they try will still be in the shadow of this ruling - making it greatly more difficult for them to introduce anything remotely similar.

While I'm sure studios don't mind that much. They are playing a bigger game than just this case. The certainty means that any lobbying for change of law cannot be stifled by claims that the current law is adequate (for what they want). So whereas law makers could have said there was no need to change the law to achieve what the studios want, the certainty of the High Court ruling shows that the current law does not allow them to easily pursue the ISP.
So expect pressure on the federal government for a law change.